...my response was "Think analog" not as in analog policy vs digital policy but think of the real world we live in and the ethical issues we face every day. My point was that I can be pissed that the GAP doesn't have an outfit that is as stylish or fit as well as I want. And I can think that they arent serving their customer when they give me ugly clothes that dont fit well. ie: their busiess model sucks. But I don't think that gives me the right to take any of their clothes without paying just because I am an unhappy customer. That was my ONLY point. Do I think that the content industry has moved way too slowly in putting their content online? Absolutely. Do I think they could have been and should be more innovative? of course. But I also know that these are huge ships turning around in creeks and however easy the answers seem to you , they are often really hard. When people screw up their business, their sales go down. That has happened in the entertainment business. They are paying a price for their pace of change. BUT, there is also stealing. Pure old simple unethical stealing. Call it whatever you want - the march of technology - the inevitable cost of innovation, etc. To the writer or songwriter who makes their money on SALES, it is stealing. (Even if they might be thinking about making their money another way.)
And while I love the dialog by for and about consumers and fans on these issues, I have no patience for big companies like Google who not only throw huge sums of money out there buying professors and economists and think tanks to kill any effort at copyright protection, they make a fortune on search advertising for those same illegal products.

So, your first sentence was right, I have long been willing to shine an unattractive searchlight at my old compatriots when they deserve it But I have no patience for the finger pointing and nastiness of the so called tech fans in this debate. Thank god I don't have to care so much anymore.

While we appreciate Rosen stopping by and joining in the discussion, the responses highlighted the myriad problems with this statement, going beyond both the tortured, nonsensical analogy (who steals something from a store that doesn't have what they want, or who steals clothes they don't like because they don't like them?) and the ridiculous "it's theft!" claims. If you want to read the full thread or discuss her specific points, I urge you to go to that thread and continue the conversation there.

The whole exchange got me thinking about some bigger issues though. Rosen's comments reminded me so much of my experiences at various recording industry events, where they pay basic lip service to things like "we have to adapt" and "we have to stop blaming customers," but then immediately flips to "but piracy must be stamped out first!" never recognizing that these two things are at odds. And what it boils down to is a mixture of a psychological issue and a confusion over economics.

First, Rosen's response, like many others, falls back on facile and inaccurate "morality" claims. This is usually a sign of a very weak structural framework to an argument. When you can't explain why, you resort to "well, it's just wrong." But, as we've explained for years, the "morality" aspect of an economic decision only comes into play when there's a decision to be made about who will be worse off. That's all morals really are about. If move x harms person y, is it "right" to do that? Folks like Rosen and many SOPA/PIPA supporters see what's happening online and it looks exactly like the previous sentence: "If downloading music harms musicians/songwriters, it's clearly not right to do that."

But that misunderstands the wider economic implications of what's happening. Let's put it another way to make this clear: If selling automobiles harms the makers of buggy whips, is it "right" to do that? I think most everyone would claim that it's fine. This is innovation in process. Thus, the simple statement, "If move x harms person y, that's immoral," seems way too simplistic. Let's expand it out further. What if, in our buggy whip hypothetical, the rise of the automobile forces the buggy whip maker to change their business model... such that they no longer make buggy whips, but steering wheels. The classical lover of buggy whips may find this upsetting -- and the buggy whip maker may complain, "but buggy whips are my product, I'm not in the steering wheel business." But the market doesn't care. In this situation, the morality question is more complex: "If move x harms person y in the short term... but opens up much greater opportunity for them to do better by accessing a much larger market, is it right?" Suddenly, the moral issue is pretty straightforward. There's no moral question at all. The market has changed, and as long as the whip maker comes along for the ride, the opportunity is there to be better off. It may be a challenge, but it's hardly a moral issue.

Rather than confront this, the people who insist this must be a moral issue, back up their claims with a secondary claim to make it seem like a moral issue: "someone else is profiting off my work, and that's unfair." In many cases, the "someone" they point to is "Google." This is mostly a correlation vs. causation error. People see that Google is massively successful, and the timing correlates well with the decline in the record labels. So they assume that Google must be "taking" money from the labels. This is quite inaccurate and shows a lack of knowledge about a variety of subjects, beyond the fact that correlation is not necessarily causation. In the thread with Rosen, I point out that the claims that Google "profits" from infringement are widely overblown. Google makes money from clicks, and infringers aren't hanging around these sites clicking on ads.

But the bigger issue is this relative morality issue of "If someone else benefits from my work without paying, that's unfair." But, again, this is way too simplistic and not reflective of reality. People benefit from the work of others for free all the time. In economics, it's known as an externality. Tragically (and potentially because of the name), people think that externalities are rare. They're not. They happen all the time. Every day, people benefit freely from the work of others without paying. As the saying goes, we all "stand on the shoulder's of giants." So much of what we value today comes from advancements in the past, which we benefit from, without paying those who created them. And yet, no one thinks this is bad.

The real question is if whether you can take it a step further and recognize that the economy is not a zero-sum game, in which one party loses when the other benefits. This is often difficult to understand, but put simply: in a zero-sum market, someone paying you $10 means I lose those $10. In such a scenario it may be reasonable to worry about someone else profiting, because it really does mean you lose. But in a non-zero sum market, with externalities, the market can expand. If every time you get paid $10, I now have the opportunity to make $100, that's clearly a better deal. But, let's make it a little more complex. In the zero sum game, every time you get $10, it's at my expense. But what if the other option in that world is that every time I raise my hand, you get $10 and I get just $1. That's still a much better deal for me to take than the one where I lose money. In this case, I might not make as much as you -- even if I'm doing the work, but is that morally wrong? We're both better off under this scenario. You're better off because you make more money. And I'm better off because I'm making more money... just not as much as you.

But, for whatever reason -- psychology, economic ignorance, etc, -- many people react poorly to this, claiming that it's a moral problem. I, personally, have trouble seeing how a situation in which everyone is better off results in any sort of moral dilemma, since we never reach that crucial moral question of "who gets harmed?" Because no one has to get harmed. But here's the kicker: no one has to get harmed if they adapt. And it's the adaption part that freaks people out and makes them want to cling to something clearer, even if it makes them worse off in the long run.

Zero sum game

As a small, insignificant (and somewhat self centered) counter argument. My wallet is a zero sum game. If my money goes in one direction, it's not going in another. But, this argument still shows that the RIAA/MPAA are overreacting.

As I said yesterday on Google+, if I buy Futurama season 6 instead of South Park season 15, is South Park losing money? Am I an immoral asshole for watching South Park, but not paying? No, it means I'm broke and can't afford both.

Re: Zero sum game

What the entertainment industry is complaining about is the theft of their content. It is a theft of services no matter how many times it is claimed otherwise. The service provided is the performance (music, movie, etc..). If you illegally view that material you are stealing the performance - it would be the same as sneaking into a concert. The fact that it was recorded and in what format it was recorded should have no bearing on the intent of the law.

Re: Re: Zero sum game

Re: Re: Zero sum game

I illegally downloaded George R.R. Martin's "A Game of Thrones" and enjoyed it so much I purchased all four books. Then I lent the first one to a friend of mine, and he went out and purchased all four books.

Re: Re: Re: Zero sum game

*headdesk* No, you aren't a criminal. (and this is coming from a musician btw!) There is nothing wrong with trying something before you buy it, as long as YOU ACTUALLY buy the product if you decide you like it. The people I have a problem with are the freetards that "try before they buy," then decide they like it but keep the pirated version instead of supporting the awesome person that made it.

Re: Re: Zero sum game

You're completely missing the point in an attempt to put up a straw man argument.

My point was that the amount of money they claim are losses would equal thousands of dollars for every person. I don't have that kind of money. Vary few people do. The losses that they claim, this "theft" that you keep going back to, is a giant crock of shit.

When a company is claiming that they're losing hundreds of millions of dollars every year that says one thing to me: they want more money from me, from everybody then we already have, and they will use any means to get it. That sounds like attempted theft and extortion to me (the actual definitions).

Re: Re: Zero sum game

It is a theft of services

I could see how you would believe this but it is incorrect. If I download an MP3 from Amazon, and then refuse to pay them (perhaps by stopping the transaction on my credit card), that would be a theft of service, because I used someone's service and then refused to pay the agreed upon price.

If I download the same MP3 from a torrent tracker, I have stolen no service, because the only people participating in the transfer (i.e. the service providers, the other seeders) have willingly offered this service at no cost to me.

Re: Re: Zero sum game

"The service provided is the performance (music, movie, etc..). If you illegally view that material you are stealing the performance - it would be the same as sneaking into a concert. The fact that it was recorded and in what format it was recorded should have no bearing on the intent of the law."

Wow, I never thought about like that before. Thanks for clearing that up for me. So logically.... That means that if you buy a CD, you can only listen to it once? Because every time you listen to it after the first is like sneaking into a concert and listening for free. Right?

Re: Zero sum game

You are looking at just yourself. But if the the overall market is expanded, it includes millions of people, not just one person. So at an individual level, it may be zero sum, but on the whole it is not zero sum.

Re: Re: Re: Zero sum game

By your logic, AC 24, a person would have to pay every time they viewed a DVD they already owned, as each viewing would constitute a performance. Fortunately, your logic is flawed. Content is no longer tied to a physical item. Basic economics says that when supply is infinite and the cost of reproduction is at or near zero, price naturally gravitates to zero. I know you do not wish to hear that, but reality cannot be changed by ignoring it. The reality is that infringement has been recognized by the US Supreme Court as not being theft. Therefore, any claim that is it is is both incorrect and deceptive.

You would be better served in learning to give customers what they want - reasonably priced content that is easily accessible and free of limitations, restrictions, warnings, and DRM. However, as doing so would jeopardize the gatekeeper position of your superiors and those you support, I find it unlikely that you will attempt this.

Also, you have yet to cite any empirical, non-entertainment industry evidence to support your claims. Do so or admit you are incorrect. There are no other options.

This is an invalid statement given these "huge ships" are making NO effort to "turn around", but are attempting to force the rest of us to dig a deeper channel to take their boats where they want them to go.

Re:

Also, she can blather about "theft" all she wants. But as a mouthpiece for an organization that a LOT of people consider to be engaged in nothing short of wholesale extortion, pardon some of us if we fail to take her arguments very seriously.

New FBI Warnings

"Theft" is not a strong enough word, obviously. The term they need to start using is "intellectual rape", just to drive the point home how serious it all is.

I look forward to the new FBI warnings:

You wouldn't rape a prostitute.
You wouldn't rape a family member.
You wouldn't rape a child.
Downloading pirated films is rape!
Rape is against the law!

Maybe then they can shift the arguments somewhat:

"Why does everyone here defend rapists? Just because a girl doesn't give it up in the way you want her to doesn't mean you have a right to rape her! So why is it okay to rape the intellects of others through filesharing? Have you no moral character?!"

Re: New FBI Warnings

I like it. The only way to counter an absurd argument is to show its absurdity by pushing it just a little bit in the original direction.

Trying to explain to an obtuse and/or brainwashed opponent that infringing is not theft is futile and counterproductive. I have not seen anyone who admitted that he was wrong. Inability to change one's opinion under an overwhelming argument is a sign of either low IQ or insecurity. Or both.

Re: Re: New FBI Warnings

Trying to explain to an obtuse and/or brainwashed opponent that infringing is not theft is futile and counterproductive. I have not seen anyone who admitted that he was wrong. Inability to change one's opinion under an overwhelming argument is a sign of either low IQ or insecurity. Or both.

And insanity, as they keep trying to do the same things over and over again and expect different results, which is the very definition of insanity. How many times are you (MAFIAA) going to buy the same law over and over again before you realize that you're fighting a losing battle and only pissing off the few customers you have left.

Another bad example, now about GAP!

But I don't think that gives me the right to take any of their clothes without paying just because I am an unhappy customer.

No, and in digital world it's not stealing, it's copying. The "something" you copy does not magically disappear from the original place. The clothes in GAP would! All those supposed troubles with GAP though still give you a right to buy something at GAP store and, guess what?, IMPROVE THEM! Add something to the clothes, remove something, redesign, change color, whatever!
On the other hand, when you buy in digital world, guess what you get? No, not the real goods! Just a license to use them in a manufacturer's approved fashion (pun intended). You try to change anything with the song, book, movie - and you're infringing!

Re: Re: Another bad example, now about GAP!

I don't see anybody complaining that restaurants copy recipes from other restaurants do you?

I don't see people complaining that they don't have to pay Ford or Yamaha for the veihcules they use to make a living.

Do filmakers pay roaylties to Sony for using their hard work to make their living?

Do musicians pay royalties to Yamaha for the instruments they use to make a living?

Nope, so copying should not be a problem at all, and as proved it also create the very market artists depend on for a living, because if that was not true why give music for free over the radio and even pay for radios to give it away more often?

If you can't sell anything you shouldn't be the one making money you should be the one working for the people who do understand what the market needs.

Re: Another bad example, now about GAP!

Yes and when you do fall for buying a digital copy as you said you do not even own it.You get a stupid license and that is all.No cover art or case and no ability to resell it.You are only supposed to put it where they want you to put it.
Ad if that Company fails the DRM will not work anymore so you have a useless file.

And comparing this to stealing is wrong.If it was stealing then they should go after the thief not the whole Internet.
Stop SOPA/PIPA NOW

Re: Another bad example, now about GAP!

You know, a better "analog" example would be if the "GAP" has some clothes you want, and are prepared to pay for, but refuse to stock them at your local store, the only one you can afford the time to get to. Dear Hilary is saying that if you get one from a knock-off artist (or, better still, if your talented tailor relative makes a look-alike) you're performing the moral equivalent of theft. Hmm, sorry doesn't resonate with me. The "GAP" had the chance to make a sale, refused to do it. Their problem, not mine and there's no moral consideration at all...

Re:

And neither is re-enacting every scene from every Harry Potter movie for your own enjoyment. But it is illegal to download bootleg copies of the Harry Potter movies. When you purchase digital content (or even a VHS/DVD/CD) you are paying for a license to view/listen to the performance.

Mike, I am so tired of hearing your buggy whips analogy it is a horribly inaccurate analogy and here is why:

Buggy whip manufactures lost sales because no one wanted their product (buggy whips), they could have changed what they manufacture, but they didn't. The world still wants the products of the the content industry (books, music, movies, video games), in fact even more now than at any other time in history - people cannot get enough content.

If the market for media had diminished because something new came along, say holographic environment experiences or something like that then your analogy would be accurate. As it stands now you just sound like you're quoting your undergrad marketing professor - which I have a feeling you are.

Frankly I think it's time the large media companies opened their own content delivery businesses on the internet. Put their entire catalog on line at a decent price in a ubiquitous format (MP4 for example). They wouldn't even need the legacy tech companies (Apple, Amazon, Netflix, etc..) then, they would have direct sales to customers. As you have said in the past, get rid of the middlemen.

Re:

The world still wants the products of the the content industry (books, music, movies, video games)

I don't think you're taking into account everything that constitutes the product. Service, for example, is part of the product. It used to be that the record companies provided a product that included the content in a physical form (tapes, CDs, etc.). In other words, they never sold just the content; they also sold the means by which it could be consumed.

The market for this "total" product is rapidly diminishing. The new "total" product the market demands includes quick, easy, digital distribution without hassle. If they can't produce this product to the satisfaction of consumers, they will lose business to those who can (in this case, the pirate sites). Instead of recognizing this fact, they try their damndest to make their total product less appetizing to consumers with draconian DRM, unskippable previews, and insulting FBI warnings.

As someone who doesn't believe in intellectual property and has no problem copying content, let me say that even the pirate sites are not the pinnacle of service. The price is right and the DRM is nonexistent, sure, but torrents are frequently of poor quality, not audio synced correctly, don't play at all, and sometimes include malware. There is still room for competition here from content creators and publishers, as I think Steam and Netflix (if the content industry doesn't strangle it to death) show quite clearly.

Re:

I was thinking the same thing about the buggy whip analogy. It's not that there's a different product on the market that's more popular; people still want the same product, a product the content industries own.

The "externality" point is very interesting though. I hadn't really thought about that before. If I write a book about my favourite music then sell the book, I am profiting from the music, but I'm not harming the makers of the music. Morally fine.

If I write an ad-funded blog post about my favourite music and include links to infringing copies of that music - that seems to me to be morally wrong.

The Google situation is slightly different: if you search for music and only find infringing links, you could compare it to the blog situation above; they are profiting from advertising and linking to illegal copies. At the same time, the content owners can provide legal links and as for the infringing links to be taken down. If only legal links show up when you search Google, you would have to say the service they are providing to the content owners is a valuable one.

Re:

Since a perfect analogy is something that does not exist, it is extremely easy to point out the weakness of a particular analogy. Yet it is a power tool to explain concepts and provoke critical thinking. Buggy whip analogy is far from being perfect (again, as any other analogy), but it does its job illustrating the thought. An analogy is worthless without a thorough explanation why it was invoked in the first place. Thatís why Iím usually very forgiving when I hear people employing this colorful tool, and concentrate on the idea that a narrator illustrates with it.

Re: Re:

I see your point but most of the time I prefer to just talk about the subject rather than abstracting it to a fictitious situation (which can often be persuasive one way or the other to fir a point that is being made). I'm not saying that's the case with Mike's article (I don't think it is) - just saying how I feel about analogies. =]

Re:

I think the buggy whip analogy is apt. It exemplifies exactly what is happening here.

What is it that people want from buggy whip manufacturers and their associated industries (eg cart manufacturers and horse breeders)? They want a more efficient mode of transportation.

Now here comes Ford with his new automobile. This new invention provides that service people want, transportation, is a more efficient package. It goes faster, has lower maintenance costs and is affordable. People love it.

This shift from one form of transportation to another is part of a thriving market and economy.

Now back to the content industries. People want the content. This is what is analogous to the transportation. In this scenario, the content is being offered on one format (eg cd and dvd). Along comes this new format (digital distribution) and suddenly the market shift goes from cds and dvds to digital files. So what happens? The buggy whip manufacturers (labels and studios) are trying to outlaw cars (digital files and distribution).

Trying to fight market shifts is futile as any historian will tell you. The only thing for legacy industries to do is adapt.

The problem with this is that it doesn't take into account that the Buggy Whip Manufacturers own the transportation. It's not like there's competition from new car manufacturers making different cars. It's like they're cloning the Buggy Whips and selling them with new body kits.

The analogy shows the Buggy Whip Manufacturers need to adapt but it misses out the point that companies selling new cars without their permission are morally wrong, because they aren't theirs to sell.

Anyway, sorry. The accuracy of the analogy isn't the point of the article and I'm probably just being picky here. =]

Re: Re:

The problem is that Ford didn't go steal the buggy bodies from the buggy builders (pirates have zero investment in content production and therefor zero overhead) and then turn around and try to sell their cars cheaper than the buggy manufactures who had built the buggy bodies.

Ultimately what people are after is the content. Frankly I don't care if it comes in the form of streaming content from Amazon, downloaded content from Apple, or some other variant. I have made digital purchases of movies from both. I get frustrated with Netflix (yes I have an account there as well) because the quality can suffer if my bandwidth is saturated and their selection is horrible, they have a bunch of movies I have no interest in seeing.

Re: The "product" of the gatekeepers...

They are the rights holders - they paid the content creators to create the content. The content creators don't own the rights to the content because they didn't pay for its creation. The Movie studios finance the production of the films (traditional hollywood movies - yes I am aware that there are movies produced by individuals but that isn't what people are complaining about here) and the movie studios retain ownership of those films. They front the funds needed to produce the movie, I guess someone could try to get a loan to produce a movie, but given the competition and the uncertainty, it would be hard to find a loan officer willing to lend the money required to make a feature length movie.

Re: Re: The "product" of the gatekeepers...

In most cases, AC 67, they did not pay the content creators anything - you seem to be unaware of the concept of Hollywood accounting. Organizations that knowingly fleece those who they claim to support are not to be trusted. Also, consumers do not care about the sunk costs of content. What matters to them is what they see on their end - the price, ease of access and ease of usability. Also, there are many other ways to fund a film than just the traditional gatekeeper approach. Crowdfunding, for instance, is one such alternative. By no means the only one, but it does show that relying on gatekeepers is no longer necessary.

Re: No. They are buggy whip makers.

"THAT is the product.

It's the delivery mechanism and not the content."

EXACTLY! I've paid for a year long Megaupload account before. IT gave me a delivery mechanism to a ton of content and I was happy with the service (although truth to tell, download speeds do vary for some reason). I don't like paying for individual files. I'd rather pay for access to a ton of content. Gets more bang for my buck.

Re:

As you have said in the past, get rid of the middlemen.

I don't think Mike's point has ever been to get rid of the middlemen. Besides which, those "large media companies" you're talking about ARE the middlemen. And your description of Apple, Amazon, and Netflix as "legacy tech companies" is... interesting.

Pot calling the kettle black?

I have no patience for big companies like Google who not only throw huge sums of money out there buying professors and economists and think tanks to kill any effort at copyright protection

Wow, so it is Google that is making up facts and figures and not RIAA and the MPAA? I think not. The industry's stats on piracy are what is an outright lie.

Also, this constant attack of Google and others is tiring. Nobody in their right mind is pissed at Google for making money off user links. They have no way to know what is legit and what isn't so what are they suppose to do; provide ads and search for free to everyone for fear of making money on a few bad links? They aren't a charity, they are a business.

Re: Pot calling the kettle black?

The one point that keeps going round and round in my head but they never seem to get, is that if Google has the links pointing to all the copies they don't want out there, why not follow the links that actually point to the bad guys and take them down. Instead, they want to take down Google (and every other search engine) to make everything on the Internet harder to find.

What am I missing? Google points to bad stuff for free. Follow free pointer and take down bad stuff. Leave the rest of the Internet alone. Hey, go get started now......

great article

The above comes from a sense of entitlement. Whether it be content creators, middleman managers/labels, writers, etc. all feel a certain sense of entitlement when it comes to what they believe they are owed for their work. Anything that threatens their maximum amount of what they believe they are entitled to receive in payment for their creative works makes them inaccurately label such an action as "stealing" (i.e., "You are 'taking away my money' that you owe me by not paying me for my creative service!").

This sense of entitlement does not work well with virtual / infinite goods as such goods are indeed the basis of non-zero-sum markets as the creative markets do exist within.

Re: great article

You aren't paying for a "digital good" you are paying for the performance. A blank video file (still a digital good) is worthless, the value is in the performance that is recorded.

You can't have it both ways, you can't bitch because they don't offer content digitally and then claim it should be free because it is digital. That's absurd!

They aren't charging you for the digital file, but for the experience of watching/listening. When you go to a concert you aren't buying a phsyical chair, you're paying for the experience of watching the performers. When you leave you have no physical good.

Re: Re: great article

They aren't charging you for the digital file, but for the experience of watching/listening. When you go to a concert you aren't buying a phsyical chair, you're paying for the experience of watching the performers. When you leave you have no physical good.

Hmm... if that was the case, then why don't they create a digital registry, allow people to download the file on whatever device they want at whatever time they want?

The RIAA has already spoken out against this, claiming that CD's and DVD's should be just like any other good, and if you break your CD you should go out and buy a new one. (I think the argument was, "If you break a glass, you have to buy a new one. Why should a CD be any different?) In other words, they want the best of both worlds: a physical good which can break/wear out, and intellectual goods which cannot legally be copied.

Re: Re: Re: great article

You have the right to backup your media purchases (at least CD's). I think there is some question about the legality of backups of DVDs (due to DMCA) but I am not sure that it has ever been challenged in court. I would imagine a court siding with the consumer in a case where a backup of legally obtained material was involved.

Re: Re: Re: Re: great article

If it's illegal to back up DVDs due to the DMCA, then it's just as illegal to back up CDs. Plus isn't it illegal to place-shift the content (AKA taking it from DVD or CD to play on an iPod)? If you ask the RIAA/MPAA these questions, they'd say both were bad and should be illegal (if they don't claim it is already). I can't say what a judge would say, they've been a little off the wall recently.

Re: Re: Re: Re: Re: great article

If it's illegal to back up DVDs due to the DMCA, then it's just as illegal to back up CDs.

Not quite. It's legal to make back-ups of either. What is illegal via the DMCA is the "circumvention of technological measures used to protect copyrighted works" (CSS) which effectively makes backing up a DVD illegal.

Re: Re: Re: Re: Re: Re: great article

Not quite. It's legal to make back-ups of either. What is illegal via the DMCA is the "circumvention of technological measures used to protect copyrighted works" (CSS) which effectively makes backing up a DVD illegal.

Re: great article

People are not rational with money. There's a fairly common psychological study where people are given 10 $1 bills and one person gets to make a single offer for how to split it, and the other person gets to accept or reject the offer. If the offer is rejected, nobody gets any money.

Rationally, the person would always offer $1, and the offer of a dollar would always be accepted. But people will normally reject the 90%/10% split because they feel cheated. That's what we're seeing here. If someone else is making money from their stuff, even if they end up with more money than they would have without it, they feel cheated and want to reject the deal.

Re: Re: great article

In the previous article, some called her a "valley girl" and took flak over negative stereotyping. Considering she goes on and on about clothe shopping at the GAP, I would say that comment was dead on. Kudos to the original poster!

Clothing analogy is flawed too

I have a real problem with her analogy of clothing from Gap. It's not that the Gap has undesirable clothing, quite the opposite. A closer analogy would be that Gap has an outfit that is desirable and she is willing to spend a reasonable amount of money to purchase this item.

Let's say a fair market price compared to other retailers would be $100. Unfortunately, Gap has decided that the outfit should be sold as part of a collection and you have to buy the whole collection at a cost of $1200 to get the one outfit. Also, once you buy the collection, it can only be worn in the United States. If you leave the country, you cannot wear the outfit. Finally, you must remain the sole owner of the outfit until the day of it's destruction. You can't give it to a friend, you can't sell it on eBay, you can't sell it in a thrift or consignment shop and you can't donate it to charity.

Given all those conditions, if you saw the outfit on a rack labelled "free" at a tag sale, are you telling us you wouldn't pick it up? Somehow I doubt it.

Re: Clothing analogy is flawed too

"Finally, you must remain the sole owner"

Wait wait wait. Sole owner? You don't own anything, at least not in the MPAA/RIAA's world. What you pay for is the valuable opportunity to bend over and take it up the arse, and hopefully if they felt the ride was good enough, they'd oh so graciously allow you to watch the movie/listen to the music/read the book/play the game.

Buggy whip manufactures lost sales because no one wanted their product (buggy whips), they could have changed what they manufacture, but they didn't. The world still wants the products of the the content industry (books, music, movies, video games), in fact even more now than at any other time in history - people cannot get enough content.

I see what you are saying here and I would have to agree - up to a point.

Would the analogy be better if we used buggy manufacturers? You might rebut with "But, that is still a product that nobody wanted after the automobile came along" and that would be true. But, what you might be missing is what the actual business buggy makers were in. They were not simply in the buggy making business, they were in the personal transport device making business and something better came along and displaced them.

Yes, people want the content, but the legacy gatekeepers need to figure out what business they are actually in and it's not selling containers to hold content anymore.

Re: Re:

No, their primary business was about getting content from the people that actually made it to the customers. That's all well and good, except when they use their position to screw the customers and the creators.

Re: Re:

Their primary business was NEVER the content container business to begin with. They have always been in the content production business.

No, not really. The recording industry has always been about selling the container until recently. Prior to the VCR the movie industry was too (sorta), their "container" was the movie theater. Post-VCR was definitely about selling the container.

But, still, you might be missing the even bigger picture. What both are selling is entertainment and they are competing for my time now, along with my dollars. New competition has emerged recently that they never even thought about - 200 some odd channels on my TV, video games, social networking and even the internet itself is vying for my time now. It used be a choice between going to the movies, listening to an album or watching 1 of the 3 or 4 channels on TV. Now the are literally hundreds (if not thousands) of different choices out there.

Re: Re:

What is it with people like you who assume these things are mutually exclusive?

As a publisher, it used to make sense to have a hand in the creation of content because publishing was expensive, and you as a venture wanting to make a profit want to maximise your chances of that happening, so you select which content you'd prefer to distribute (or actively bid for certain content that you thing will do well). Nowadays, Youtube and its ilk shows how those 2 aspects have now completely separated - there is little need to be selective about what you'll publish or directly influence it for the best chances of commercial success as the likes of WB, Paramount & co do.

Die Hard has been out for years. The content hasn't changed significantly, so why would I not be happy with a VHS version? Because the container changed and improved. Selling me convenience and quality is just as much of part of their business as content is, if not more so (considering most publishing businesses are typically pitched to by others who have already made the show/film/music/etc).

Re: Re:

You seem to think that the tool used to get the fish is what matters.

Content is a net, with which you go to get what you really want the fish.

If the content help sell plastic discs or T-Shirts(that by the way offer better margins) it doesn't really matter it does not even matter if others are using the same exact thing as you are, in that case it will come down to the ability of oneself to charm others which should not be hard for "entertainers" that supposedly do that for a living already.

Re:

Everyone makes the mistake of falling for the misdirection. It isn't about buggies, cars, or spaceships for that matter, but what is moved inside of them.

The typical dig is calling the record labels out for sell shiny plastics discs. What that ignores is that they aren't selling the disc, but what is on it. The have gone from wax to plastic to vinyl to tape and onto the evil shiny plastic discs, and they still sell the same product: music.

The buggy whip thing gets everyone looking at the delivery method, and attempts to abstract the idea of the true product. It's a nice way for thos who are apologist for piracy to avoid dealing with reality, and to keep you looking at delivery method rather than the actual product.

It's not an MP3 file, it's a song. It's not a shiny disc, it's a collection of songs. As soon as you remember that and keep it front and center, you won't fall for the apologist party line.

Re: Re:

The buggy whip thing gets everyone looking at the delivery method, and attempts to abstract the idea of the true product. It's a nice way for thos who are apologist for piracy to avoid dealing with reality, and to keep you looking at delivery method rather than the actual product.

I'm not sure you understand the analogy. The point of it is that the market changed because of new technology, and some buggy whip makers failed to adapt. In this case, the market changed because of new technology, and some music labels have failed to adapt. That is not to say they've done nothing at all to adapt, but the moves in the right direction have been too little and probably too late, accompanied by a lot of mistakes too.

It's not an MP3 file, it's a song. It's not a shiny disc, it's a collection of songs. As soon as you remember that and keep it front and center, you won't fall for the apologist party line.

The "party line" around here is that in order to succeed, they have to understand that a song is no longer difficult or expensive to distribute, so they will have an increasingly difficult time charging monopoly rents on the distribution of songs. That's true whether they do it on discs or electronically. The problem is, distribution is where they're still focused.

If I had a hammer

If I had a hammer and used it to hit a nail to hold two pieces of wood together to make a letter "T" (to use the legacy "content" industry model), I would now owe a royalty to the hammer head maker, the hammer handle maker, the nail maker, and the lumber maker. Would I have to also pay a royalty to them every day that I used that letter to advertise my store? If I used it for a while, made a new sign, and sold that letter "T", would I have to pay another royalty. How long does that hammer maker have a hold on all of the things I make using that hammer?

Now as an exercise in "legacy content" thinking, substitute song writer for hammer head maker, composer for hammer handle maker, band for nail maker, and lumber maker for producer, and you begin to see how silly this whole argument gets.

Ok...I get her drift, but let's just say that I'm not a teenager stealing the latest greatest Lady Gaga album. Let's say that I've been buying music legally for 40 some odd years. For example in 1969 I bought the first Led Zeppelin album and continued and eventually bought them all. When I became old enough to drive...my car had an 8-track tape player, to listen to my Led Zeppelin albums I had to buy every single one of them again...then I got a new car and it had a cassette player in it...again I buy all the Led Zeppelin albums once again...in a few years CD's come out...they are digital and sound better so I buy them all again...at what point do I own the music I've bought? If I download mp3 versions of all my Led Zeppelin songs am I stealing or are the recording companies stealing from me every time they change the media I listen to? There are ethical and moral values to look at here, but both sides need to look at their participation.

Re:

If you rip your own CD/LP/Cassette/8-track (I would hate to imagine a rip from cassette or 8-track) you are making a backup copy and it is legal. You licensed the content that was contained on the LP, CD, etc.. but you purchased them again for convenience. If you were to have instead copied your LP using an 8-track recorder and then again to a cassette recorder and then later to CD it would have been perfectly legal. You don't have to repurchase your license to the content to transfer it to another format.

Re: Re:

"Morality" has no place in this discussion

Mike is talking about economics, which is a study of human behavior (not motivation). Economics is really, really bad at deciding what is "right". It is not a normative science. It helps you predict how people will react to various changes in their incentives, but it cannot tell if those reactions are "good" or "bad".

Rosen is, ultimately, talking about law. Morality has even less purchase there. While I disagree that copyright infringement is "theft" (it plainly isn't), it is presently illegal. She is absolutely right about that. Those of us who believe in the rule of law should not knowingly or willingly break it, unless we must. I am not so creative as to conceive a circumstance where serious injury to body or property could only be prevented by downloading a DVD rip of Avatar. Thus, I do not do it.

As to the morality of copyright infringement - it must be noted that copyright itself is a new-ish concept, and for much of its life it referred to the right of sovereign governments to censor critical writing. Copyright as a monopoly on a particular expression did not exist until shortly before the US Constitution was drafted. Copyright on sound recordings did not exist in the US until the early 70s. The concept of there being a right to infringe is brand new, so the idea that it might be immoral to infringe it is also very recent. I believe that it is likely the result of a very successful PR campaign by the best PR engineers in the world, with whom Rosen used to work.

In the abstract, it is strange to conceive that it would be immoral to undermine a monopolist's advantage in order to inject competition into the marketplace, increasing the incentives to improve quality and reduce prices, even if illegal to do so. One rarely hears of the noble monopolist, beset by evil competitive forces but upholding the principles of price discrimination and profit maximization in an unfriendly marketplace.

I always love the digital copying comparisons to physical store theft. Say i go to the GAP they don't have clothes that fit me or the exact style i want. Maybe they have something close. So i take a photo, take this photo home, using my own materials i create a near replica, minus all the parts i didn't like. Now the GAP didn't make any money. The clothes manufacturer didn't make any money, but i have clothes that fit and they are one could say copied from the store. Did i steal anything? Am i a criminal?

Re:

Home sewing is killing fashion!

Don't you realize how many people would lose their jobs if you made your own clothes? You should be ashamed of yourself...

Also, no home cooking (think of the caterers!), no car driving (think of the bus drivers!), no riding the bus (think of the car manufacturers!), no drinking water from the tap (think of the soda manufacturers!), no singing in the shower (think of the musicians!), no electronic music (think of the musical instrument manufacturers!), etc, ad nauseum....

infringement is not theft. i think that this is the core principle that she and other music exec's just can't seem to get their heads around (or maybe they do understand and just don't care). when someone downloads a song illegally it is a selfish act, but when that same person uploads that song to the web, they are giving that artist exposure that they would not have otherwise gotten. are sales of that song impacted? maybe, and maybe not. most (honest) studies show that it is good for the artist to get as wide an exposure as possible. and here we come to the crux of the disagreement. this is where we see the disconnect between the interests of the artist and the interest of the studio. one benefits from as wide an exposure as possible while the other benefits from restricting every avenue of distribution to try and create an artificial exclusivity.

now i am going to give you an example of the non-zero sum power of sharing. i agree so completely with stephen t. stone's post from the previous article, that i am going to "steal" it and repost it here. an obvious case of me infringing on his work, and yet we are both better off for it.

"Ooooh, an actual RIAA-type person willing to put a name to their post! This is exciting; I've never gotten the chance to openly debate one of you before. Let's begin!

[M]y response was "Think analog" not as in analog policy vs digital policy but think of the real world we live in and the ethical issues we face every day.

In the real world, the RIAA has screwed over numerous artists with its favor-the-label accounting practices and copyright trickery (especially in regards to sampling), sued its own customers for daring to not go through a paywall to experience new music, and attempted to prevent MP3 players from becoming popular before they were popular. How's that for some real world ethics, hmm?

I have pirated music. I'm not afraid to admit it right to your face. But regardless of what you and the RIAA cronies might say about pirates to Congress or the Supreme Court or any other political forum, I don't do it to slight artists or "stick it to the man" -- I do it because I want to experience new music, and up until the proliferation of iTunes and Creative Commons-licensed music, I wasn't able to do so in a easy and timely manner. Napster -- the first P2P network I ever used -- made it easy for me to find new music (and old music), including obscure works by artists that the RIAA either passed over or forgot existed. I still pirate music from Japan on an irregular basis because, excluding buying said music from super-expensive CD importers, there is no legal method of obtaining this music in the United States.

If you want to talk about ethics, let me know what kind of ethics make the RIAA want to continually push copyright forward into infinity and make it harder for people to legally purchase/support musicians from around the world.

I don't think that gives me the right to take any of their clothes without paying just because I am an unhappy customer.

Simple question: when I pirate a song from SoulSeek, what have I taken? Has the original master recording of a song disappeared from its storage place? Has the artist behind the song lost the ability to perform it? What is being stolen when I pirate a song?

Oh. Right. "Theft" is a metaphor that you and the RIAA use to conflate stealing a physical product with illegally copying a copyrighted digital file that doesn't disappear when I download it off a server or someone else's computer via P2P. That's just the ethical thing to do, though, right?

(Note that I am not condoning or supporting piracy. I know it's illegal. I just choose not to give a flying goddamn about copyright law because I believe that copyright law only serves the interests of the corporations who rely on copyright law as a way of avoiding adapting to new business models.)

Do I think that the content industry has moved way too slowly in putting their content online? Absolutely. Do I think they could have been and should be more innovative? of course. But I also know that these are huge ships turning around in creeks and however easy the answers seem to you, they are often really hard.

Gee, I can't imagine how it got that way. It couldn't have anything to do with the RIAA bogging the waters with copyright law, bad accounting, and not giving a damn about artists' rights -- right?

[T]here is also stealing. Pure old simple unethical stealing.

Yeah, I bet that the RIAA can't stand it when technology steals the opportunity to set up a new walled garden for music.

To the writer or songwriter who makes their money on SALES, it is stealing. (Even if they might be thinking about making their money another way.)

"I was telling kids, 'Download it illegally, I don't care. I want you to hear my music so I can play live.'" ~ Kid Rock (an artist contracted by an RIAA label, last I checked)

I have no patience for big companies like Google who not only throw huge sums of money out there buying professors and economists and think tanks to kill any effort at copyright protection, they make a fortune on search advertising for those same illegal products.

Technology companies like Google should just be good little bitches and get back in the RIAA's kitchen, right? They should just lie back and take having their technology and their innovations stifled and legislated out of existence by politicians who are bought and paid for by the RIAA and the MPAA and other big media companies, right?

This sounds like more of those RIAA "ethics".

I have no patience for the finger pointing and nastiness of the so called tech fans in this debate.

We have no patience for people who support legislation that will fundamentally alter the foundation of a global communications network to protect a few legacy business models that said businesses can't (and won't) fix without being forced into it.

We have no patience for people who support the most heinous attack on the First Amendment in years just because they want us to "think of the artists" (the same artists that the RIAA has metaphorically bent over a chair).

We have no patience for people who don't want to see the future. We have no patience for people who want to revert technology back to the past. We have no patience for people who have no idea what the hell they're doing.

We have no patience for the RIAA. We have no patience for the MPAA. We have no patience for their lobbyists and their paid-for political representatives.

We have no patience for you and your kind.

The world has changed. The Internet has changed it. If the RIAA and the MPAA and the other big media corporations refuse to change with the rest of the world, then I believe that they should start digging corporate graves for each other.

We have the power to communicate, to share, to enable new experiences and come together as a society thanks to the Internet -- and the RIAA wants to destroy how the Internet works just to make sure Lady Gaga's next single doesn't get downloaded by even a single person?

This is Getting Old

If Hilary Rosen, after a decade, is still calling copying "theft", and she is
supposedly one of the more enlightened bulbs that ever shone in the RIAA
sign, then the recording industry is truly doomed.

The people who say, "It's not alright to steal a thirty-cent pack of gum" should
be forced to repeat the question, "Is it okay to make a copy of a thirty-cent pack
of gum?" several hundred thousand times until they get this most basic point.

The bottom line is, the recording industry has no fundamental right to dictate
what machines people may own or how they may use them. If new machines have
come along which make selling recordings difficult, the only sane course of
action is to figure out how to make the purchae of recordings more attractive.

At the absolute MOST, if you can't figure out how to make money from recordings,
then STOP RELEASING recordings! The government and the rest of the world do not
owe you a living based on your insistance on the clueless use of antiquated
technology.

The recording industry (and I include the DVD arm of the movie industry here)
have been given this great crutch by the government called "copyright". And not
only have they been viciously bludgeoning everyone with this crutch for decades,
but they have gone back to the government numerous times, insisting that the
crutch is not strong enough to keep them in business.

Their shrill insistence on entitlement is really starting to get irritating.

Starting?

Re: This is Getting Old

The people who say, "It's not alright to steal a thirty-cent pack of gum" should
be forced to repeat the question, "Is it okay to make a copy of a thirty-cent pack
of gum?" several hundred thousand times until they get this most basic point.
----
The problem with this is Wrigley's will sue the hell out of the author for copyright infringement because they have a reputation to maintain. Considering the "several hundred thousand times" plus the unjust potential of penalty assigned, no one would be foolish enough to try.

Re: This is Getting Old

What difference does it make what you call it. Lets call it? It is still THEFT (the legal definition of which is - a criminal taking of the property or services of another without consent) of SERVICE (the performance). You can white wash it and call it what you like but the fact remains you are viewing/listening to the performance without compensating the rightsholder.

Re: Re: This is Getting Old

You can say whatever you want the fact of the mater is I don't need you to make a copy for me, I don't need you to distribute it for me and I don't even need to fallow the law.

Say what you want, think what you want at the end of the day I want to see you try to put that into practice, I want to see you enforce that crap you spout.

I'm ready for a fight, if you believe I should pay a bum that doesn't show up to entertain me but wants the money anyways you are wrong, if you believe I should pay a bum that doesn't do the work but want to get paid for mine you are wrong.

Anyone should be free to buy something and use it to make money not just the parasites you call "content owners", anyone should be able to sing anything they like and don't have to pay some bum that claims he wrote it or is the original performer, anybody should be able to buy a DVD and rent it or resell it without having to pay some bum that claims he produced it, if Ford was to do that you would get upset probably. I don't see farmers having to pay royalties to the manufacturers of their tools do you?

So why do so bum that call himself "content owner" should be paid for no work? and worse still have the ability to stop others from working?

Screw that, everybody should stop paying right now and pirate everything, it is not that difficult and entails little to no risk and I very much doubt it would change in the near future.

Way too long

I'm sorry, but when there are articles like this on techdirt, I quickly skip over them. This is way way WAY too long. I only read the last two paragraphs, and while I appreciated and agree with the point there - it made me feel as all the stuff BEFORE those two paragraphs were really needless... maybe it wasn't but I really don't have time to read REAMS of dialogue to GET to the POINT.

Re: Way too long

Re: Way too long

Oh, I'll apologize in Mike's stead. I'm sorry your attention span is so poor that you can't read a goddamn blog article. I was reading encyclopedias for fun cover to cover when I was four. I presume you're an adult. Surely you've got two minutes to read an article.
Plus, you just defeated your own point. If you don't have time to read an article, you certainly don't have time to then comment on it.

It's copying, "not stealing".

No. It's copying, not "stealing". It's stealing when I go into Walmart and take their stuff. They don't have it any more. I have deprived them of a certain amount of money, the money they spent on buying that stuff.

The mental disconnect with creative works come from the fact that it can be easily copied.

I could do the same thing with the clothes at the Gap. I could take their designs and adapt them to my needs.

THAT is what is happening with pirates.

The industry needs to get that into their thick skulls and get out of this 1500s mentality. It only hurts them.

Sooner or later, a real competitor will emerge and they will have no recourse because it will be a replacement rather than someone that's just copying their stuff. They will be finally done and they will have no one to blame but themselves (they won't of course).

Re: It's copying, "not stealing".

We need a better analogy than "stealing".

Maybe we can compare it to being a peeping tom secretly looking at a prostitute. The peeping tom gets his kicks; it doesn't cost the prostitute anything; it's not a lost sale because he was never going to pay for sex with her anyway. (he's not interested in the physical product) It is a violation of her rights but it's not costing her anything and maybe she should adapt her business model.

The only "moral problem" is these data-salesmen's desire to suppress other people's freedon for profit. It brings to mind an episode of The Simpsons, where the power plant owner Mr. Burns builds a giant parasol over Springfield, so there won't be any sunlight and people will have to use electric lights all day.

Effortless copying and transmission of digital data is a fact of life, like sunlight. Some people would profit if they went away, but the rest of the world would be infinitely worse off.